Tuesday, 21 January 2014

HOHFELD THEORIES AND PRINCIPLES

WESLEY NEWCOMB HOHFELD : Examined and published on the thriving balance of black and white / right and wrong / left and right / up and down.

As a jurist Hohfeld published a working theory that was geared toward striking a balance based upon the four corners of legal principles.  I.E., when you claim a right; then, you are also burdened with a duty of care to simultaneously and vigorously to provide balance. Logic is essential and fundamental to the issues of natural justice. Economics complicate everything.
Wesley Hohfeld, a Harvard law professor (wkp2) in the early part of the 20th Century, developed an analytical framework for understanding interests in property. Hohfeld’s eight terms are arranged in two tables of 'correlatives' and 'opposites' that structure the internal relationships among the different fundamental legal rights.
  
              JURAL OPPOSITES               
Right
Privilege
Power
Immunity
No-right
Duty
Disability
Liability
A privilege is the opposite of a duty; a no-right is the opposite of a right. A disability is the opposite of a power; an immunity is the opposite of a liability
JURAL CORRELATIVES              
Right
Privilege
Power
Immunity
Duty
No-right
Liability
Disability
"Correlatives" signifies that these interests exist on opposing sides of a pair of persons involved in a legal relationship. If someone has a right, it exists with respect to someone else who has a duty. If someone has a privilege, it exists with respect to someone else who has no-right. If someone has a power, it exists with respect to someone else who has a liability. If someone has an immunity, it exists with respect to someone else who has a disability.
A right can be enforced by a lawsuit against the person who has the correlative duty. A privilege negates that right and duty, and typically would be asserted as an affirmative defense in the lawsuit. A power is the capacity to create or change a legal relationship. For example, when someone make an offer of a contract, that gives the offerree the power to create a contract by accepting the offer (or not). If the power to create the contract is exercised, then both parties have rights and duties with respect to each other. Courts have power, only if plaintiffs or prosecutors exercise their power to commence a lawsuit. Sovereign states are immune because courts lack power over them, in which case courts are said to have a disability with respect to sovereigns.
If I "own" property, it means that I have various rights with respect to the thing constituting my property--the "bundle" of sticks or rights. I probably have the right to exclude and everyone else in the world has a correlative duty not to use my property. Some people may have a privilege, however, as to fly over it. I also have power with respect to my property because I can create rights in others, as by transferring some or all of the property to them, as by creating an easement, which gives the grantee certain rights vis-a-vis others and certain rights and privileges vis-a-vis me.
See Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis.L.Rev. 975, 986-87.
 Our associate Touchstone Committee (since 1975) endeavours to provide venues for rounded debate on public policies. And, within this human rights formation is the question of the right to legal counsel - especially, when in dispute with governance institutions.